The
summaries of Colorado Court of Appeals published opinions are
written for the CBA by licensed attorneys Teresa Wilkins
(Englewood) and Paul Sachs (Steamboat Springs). They are
provided as a service by the CBA; are not the official
language of the Court; and are available only in The Colorado
Lawyer and on the CBA website, www.cobar.org (click on
"Opinions/Rules/Statutes"). The CBA cannot
guarantee their accuracy or completeness. The full opinions,
the lists of opinions not selected for official publication,
the petitions for rehearing, and the modified opinions are
available both on the CBA website and on the Colorado
Judicial Branch website, www.courts.state.co.us (click on
"Courts/Court of Appeals/Case Announcements").

When a
police officer pulled over Anderson's car, Anderson got
out of his car and fired multiple bullets at the
officer's patrol car. One bullet hit the officer's
arm, wounding him. As Anderson attempted to reload his gun,
the officer shot Anderson twice, ending the incident. The
evidence at trial established that Anderson and the officer
were the only people on the road. A jury found Anderson
guilty of attempted extreme indifference first degree murder;
first degree assault, threatening a peace officer with a
weapon; first degree assault, serious bodily injury with a
deadly weapon; and first degree assault, extreme
indifference. The trial court sentenced Anderson to 48 years
in the custody of the Department of Corrections for the
attempted extreme indifference murder conviction, and to a
concurrent sentence of 30 years on the first degree assault
(extreme indifference) conviction. It also imposed
consecutive sentences of 30 years on the two remaining first
degree assault convictions, for a total of 108 years.

On
appeal, Anderson contended that the evidence was insufficient
to convict him of attempted extreme indifference murder. Even
if defendant meant only to effect his own suicide by
provoking the officer to shoot him, Anderson's knowing
and voluntary acts of firing numerous gunshots at the officer
permit his conviction for attempted extreme indifference
murder. However, when a defendant's conduct does not
endanger more than one person, as here, the evidence is
insufficient to sustain a conviction for attempted extreme
indifference first degree murder.

Anderson
next contended that he should receive a single first degree
assault conviction and sentence because his three sentences
for first degree assault violate double jeopardy. CRS §
18-3-202(1) establishes a single offense of first degree
assault with alternative means of commission. Here, because
there was one victim and one act, Anderson may be convicted
and sentenced for first degree assault under CRS §
18-3-202(1) only once.

The
judgment and sentence were affirmed in part and vacated in
part, and the case was remanded.

Defendant
was charged with distribution of cocaine after a police
informant purchased rock cocaine from him. Before trial, the
prosecution filed a CRE 404(b) motion requesting the
court's permission to present evidence of a drug deal
defendant was involved in that occurred about three months
before the events in this case. The court granted the motion,
and thereafter, a jury convicted defendant of distributing
cocaine.

On
appeal, defendant contended that the trial court erred in
admitting evidence of the prior drug deal to show that he had
a distinctive modus operandi or that the two drug deals were
part of a common plan. In cases that do not involve sexual
assault or domestic violence, uncharged misconduct evidence
offered to prove modus operandi is only admissible to prove
that the defendant was the person who committed the crime.
Here, defendant did not deny that he was the person with whom
the informant met, so his identity was not at issue and was
not a material fact. The uncharged misconduct of the prior
drug deal was not relevant independent of the impermissible
inference, prohibited by CRE 404(b), that defendant had bad
character. Therefore, the trial court should not have
admitted evidence of the prior drug deal. Furthermore, there
was no evidence that the two drug deals were part of a common
plan. Because this error was not harmless, the judgment of
conviction was reversed and the case was remanded to the
trial court for a new trial.

On
appeal, Sandstead contended that the district court erred by
surcharging her for actions related to the farm sales
proceeds, which were placed in joint bank accounts before
Auriel's death, because that money was not estate
property. The Court of Appeals agreed. By law, the farm sale
proceeds were never estate funds. Therefore, the court could
not surcharge Sandstead for her expenditure of those funds.

Sandstead
also contended that the district court erred by surcharging
her for actions she took before the court appointed her
personal representative (PR) of the estate. The district
court ruled it could surcharge Sandstead because she acted as
a fiduciary as both her mother's agent under a durable
power of attorney and as a trustee of an implied trust
regarding money in joint bank accounts. The Court found there
was no evidence Sandstead acted pursuant to a power of
attorney regarding farm sale proceeds and there was no basis
in the record for imposing or finding an implied trust
regarding the farm sale proceeds. Before her appointment as
PR, Sandstead was not a fiduciary of the estate. Thus,
surcharging her for the estate's benefit for acts prior
to her appointment (and that related to non-estate funds) was
not allowed by CRS § 15-10-504. Therefore, the district
court erred by surcharging her for actions she took before
she was appointed as PR.

Corona
argued that the district court erred in enforcing the in
terrorem clause to preclude her from benefiting under
Auriel's 2000 will. Because Corona did not have probable
cause to challenge the validity of the will, the district
court did not err in enforcing the in terrorem clause.

The
order awarding Corona attorney fees and costs under CRS
§ 15-10-504(2)(a) was reversed, and the case was
remanded for recalculation of surcharges based on
Sandstead's actions relating to estate property only
while she served as PR, and to reconsider the award of
attorney fees.

Defendant
was charged in three cases with various drug, driving, and
other crimes. In each case, the district court issued a
Mandatory Protection Order (MPO), which prohibited defendant
from (1) engaging in harassing or similar behavior or
tampering with any witness to or victim of the acts charged;
(2) using certain drugs; and (3) driving without a valid
driver's license. Defendant ultimately pleaded guilty to
some of the charges, and the court continued the conditions
of the MPOs until defendant completed his sentences.

On
appeal, defendant contended that the MPOs are invalid
generally because the cases did not involve any victims or
witnesses who needed protection. At the sentencing hearing,
defense counsel specifically stated that he was not objecting
to the "standard protection order[s]," but was only
objecting to the specific conditions regarding marijuana and
driving. Therefore, this argument was waived.

Defendant
also contended that the district court lacked the statutory
authority to impose the conditions in the MPOs prohibiting
defendant from possessing or using drugs and driving without
a valid driver's license. CRS § 18-1-1001(3)
provides broad authority to modify an MPO and applies
generally to every MPO issued in a Title 18 case. Thus, the
drug and driving conditions in the MPOs at issue did not
violate CRS § 18-1-1001.